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ELCPartially AllowedNot stated in judgment (application dated 1st July, 2019 in the principal suit)· [2020] KEELC 2449 (KLR)

Kwena Atogo v Francis Okumu Amboye & 5 others [2020] KEELC 2449 (KLR)

Environment and Land Court
10 March 2020
1,580 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Busia set aside an unfair bill of costs taxation, ruling a transfer application cannot attract suit-level instruction fees.

What this practically means

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Executive summary

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The applicant, plaintiff in a land dispute over parcel No. MALACHI/ELUKONGO/46, brought a Summons in Chambers under Rule 11 of the Advocates Remuneration Order challenging the taxation on 6/3/2019 of the defendants' bill of costs, which the lower court had taxed at Kshs. 89,310/=. He sought a stay of execution, setting aside or variation of the taxation decision, and costs. He complained that the taxing officer denied him a hearing, taxed items 1 to 10 as costs of the whole suit when the court had ordered each party to bear its own costs, and allowed an excessive instruction fee of Kshs. 49,000/= for what the respondents characterised as a transfer application. The respondents opposed, arguing the application was misconceived and that stay of execution is unavailable for recovery of costs, but their submissions partially conceded the applicant's points while proposing a re-formulated bill of about Kshs. 22,200/= without his input. The court held that a transfer application is an interlocutory step, not a suit, and could not justify the hefty instruction fee, which would amount to unjust enrichment. It found the applicant's claim of denial of a hearing unrebutted and the whole taxation exercise unfair, exaggerated, erroneous and/or presumptuous, hence fundamentally flawed. The application was allowed in terms of prayer 2: the taxation was set aside, the bill to be retaxed in the proper way, and the applicant was awarded costs of the application.

Key legal issues

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01

Whether the taxation was conducted fairly and within proper limits

Holding

The taxation was fundamentally flawed because the applicant was not heard and the taxing officer went beyond what should have been considered, awarding exaggerated, erroneous or presumptuous costs.

Reasoning

The applicant's averments that he was denied a hearing were unrebutted; the respondents' response was too general to address specific facts. The respondents' own submissions conceded points yet re-formulated a bill without the applicant's input. Costs awarded were found exaggerated, erroneous and/or presumptuous, and the taxing officer taxed items relating to the whole suit despite the earlier order that each party bear its own costs.

p. 2
02

Whether a transfer application is a suit attracting suit-level instruction fees

Holding

A transfer application is an interlocutory step in the suit, not a suit, and cannot attract the Kshs. 49,000/= instruction fee awarded; endorsing it would be unjust enrichment.

Reasoning

The court held that an application for transfer merely moves a suit between forums and is normally simple. If filed in the suit's file it is an application in the suit, not a separate suit, and its bill of costs would belong in its own file if independently filed. The hefty instruction fee of Kshs. 49,000/= for such a step would amount to unjust enrichment and the respondents' contrary argument was mere ingenuity.

p. 2
03

Whether the taxed items 1 to 10 related to the main suit contrary to the costs outcome in the suit

Holding

The applicant's version was accepted: the taxed items related to the entire suit, yet the consent/compromise showed the respondents were not condemned to pay costs of the suit and costs had been ordered on a each-party-bears-own basis.

Reasoning

The court found the applicant's averments resonated with the truth: the amounts from item one to item ten were for the entire suit itself, while the settlement compromise clearly showed the respondents were not condemned to pay costs of the suit. Taxing the applicant for costs of the suit was therefore erroneous and outside the scope of the court's earlier orders on costs.

p. 2

Legal principles established

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  • An application for transfer of a suit is an interlocutory step and cannot attract the level of instruction fees appropriate to a suit
  • A taxing officer must afford the party affected an opportunity to be heard; taxation conducted without that input is fundamentally flawed

Court orders

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  1. 1.The application is allowed in terms of prayer 2
  2. 2.The decision made in taxation on 6/3/2019 is set aside
  3. 3.The bill of costs shall be taxed again in the proper way
  4. 4.The applicant is awarded the costs of the application

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kwena Atogo v Francis Okumu Amboye & 5 others [2020] KEELC 2449 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 1st July, 2019 in the principal suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2449/eng@2020-03-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.